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capedgirardeau writes "Via Cory Doctorow at BoingBoing:: 'Ars Technica's Jon Brodkin has an in-depth look at the "Defensive Patent License," a kind of judo for the patent system created by ... EFF's Jason Schultz (who started EFF's Patent Busting Project) and ... Jen Urban (who co-created the ChillingEffects clearinghouse). As you'd expect from two such killer legal freedom fighters, the DPL is audacious, exciting, and wicked cool. It's a license pool that companies opt into, and members of the pool pledge not to sue one another for infringement. If you're ever being sued for patent infringement, you can get an automatic license to a conflicting patent just by throwing your patents into the pool. The more patent trolls threaten people, the more incentive there is to join the league of Internet patent freedom fighters."

Unless I'm fundamentally misunderstanding the purpose, there's no legal judo here. It can't protect you against non-participants. It certainly can't protect you against trolls. It only seems to protect you against people/entities already inclined not to use their patents aggressively.

What would be more useful is if it worked this way (it doesn't):

Non-participating entity A sues participating entity B.Entity B has no useful patents with which to sue Entity A.Some other participating Entity C does have a useful patent to sue Entity A.Entity B can use Entity C's patents against Entity A.

But, this scheme doesn't make that happen. In fact, there's basically no way to make Entity C actually use its patents against Entity A on behalf of Entity B. Neither the patent law nor this license could make Entity C's patents a weapon against A.

Even if there were a way, no one with any patents of value would sign up for the DPL since: (1) the cost of enforcing the patent is going to be expensive; (2) turning over the right to enforce the patent to Entity B would be like handing the keys to your car to someone you don't know and assuming responsibility for any damage to your car (e.g., patent is held invalid, found not infringed, etc.); and (3) a priori knowledge of the value of the patent might mean that you'd be in a better defensive position not having granted "free" licenses to every participant (something that inevitably will come up in a damage calculation).

The DPL is a solution searching for a problem. And a foolish solution at that.

A company called RPX has created a much "better" solution for those that can afford to be part of the membership. Of course, in that case, RPX is the point person and has an ability to make things happen and has their own patents that they've acquired.

A lot of posts and the summary seem to be reading this as an attempt to provide absolute protection to a company, at which it would fail in the case of a clear cut patent, since a patent troll would never join.

However, and please correct me if I'm wrong, I thought the purpose of such organizations was to muddy the waters such that you become too large of a cost for a patent troll.

The logic goes something like this. If I'm a lone company with few patents in the field of my product, I have little to stand on in court, and correspondingly the cost of lawyers to the troll is fairly small. By joining a consortium that has a bunch of similar patents to the one I'm claimed to be infringing, it requires a hell of a lot more lawyer time to figure it out, and increases the risk of losing for the troll to the point where the risk vs. return ratio isn't nearly as compelling.

For instance, the purchase of patent portfolios by Google was usually explained to me as a way to make the legal situation so complicated that suing was just unappealing.